Partisan Voter Registration: What Would It Mean in South Carolina

Get a clear, nonpartisan explanation of South Carolina's primary election system and proposals to change it.

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Michael Dimino Bio

Transcript

Sponsor:
[0:00] This episode is sponsored by Palmetto Project. Forty years ago, South Carolina leaders championed the idea that every social and economic challenge in our state could be solved through innovation. They believed in the power of new ideas to fulfill the promise of our home. Since 1984, the Palmetto Project has listened to and partnered with community leaders and members to transform our state through 330 public-private partnerships. Today, our programs address early literacy for more than 23,000 children through Dolly Parton's Imagination Library, civic engagement, and equitable access to health care through the only statewide nonprofit health insurance agency in the country, and more. Learn more at palmettoproject.org or at our Facebook and Instagram accounts.

Katy Smith:
[0:43] There are currently three different bills introduced in the South Carolina House of Representatives to require voters to register to vote by party and to close primaries, meaning you can vote only in the primary of the party for which you're registered. This would make a big impact in South Carolina, where so many of our races have competition only in the primary, meaning if your party doesn't have any candidate filed or run, you will not have a choice in November. I'm Katy Smith with Greater Good Greenville, and on this episode of Simple Civics Greenville County, we want to better understand the proposals to close South Carolina primaries, and I'm delighted to speak with an expert on the topic. Michael Dimino is a visiting professor of law at the Joseph R. Rice School of Law at University of South Carolina and teaches criminal law, criminal procedure, and torts. He has authored or co-authored several articles in six books, including Voting Rights in Election Law and Understanding Election Law and Voting Rights. Professor Dimino's permanent post is at the Widener University Commonwealth Law School, where he teaches and writes in a wide variety of subjects. He graduated from State University of New York at Buffalo and Harvard Law School and served as articles editor of the Harvard Journal of Law and Public Policy and was a Fulbright scholar. He has an impressive bio beyond that, which we'll put in the show notes.

Katy Smith:
[2:02] I'm so glad to be joined by Professor Dimino today to help us understand a little bit about primaries and some of the choices that we have ahead of us in South Carolina. Thanks so much for joining me.

Michael Dimino:
[2:13] It's a pleasure to be here, Katy. Thank you.

Katy Smith:
[2:15] Thank you. Well, all right. Currently, South Carolina has open primaries. And if you are a longtime listener, you've heard us talk again and again how even though you might have a heart for a particular party, you are not in South Carolina a registered member of that party, meaning you can go vote in any primary you wish. And we've encouraged people to go out and vote in primaries. But right now, there may be a change in that in South Carolina. So is that the norm in other states in the United States, having open primaries like we do? And what other forms of primary and party registration exist?

Michael Dimino:
[2:51] There is a very large, perhaps surprisingly large variety of primary elections and rules about primary elections in the various states. Many states, of course, have open primaries. Many states have closed primaries. Many states have semi-closed primaries. And the rules for registration are varying among the states as well. Some states allow same-day registration. Some states require an advance registration. Some states put a kind of time limit that you have to register a certain amount of time in advance of the election. Some states prohibit changes in party registration for a certain amount of time. The variety is really quite striking. I want to make sure your listeners understand the difference between the various kinds of primary elections and what we mean when we say open primaries or closed primaries. A closed primary means that the people who vote in the primary are members of the party.

Michael Dimino:
[3:53] Now, some states police this, as you kind of intimated, by having a state registry of party members. So you register to vote with the state and declare your party affiliation, and your party affiliation appears on the state registry. So when you go in to vote, the voter registration rolls, say, John Smith, Republican, Mary Jones, Democrat, and you can vote only in that party's primary category.

Michael Dimino:
[4:21] An open primary says as long as you're registered to vote, you can go in and pick whichever party's primary you want to vote in.

Michael Dimino:
[4:30] Most states, almost all states, limit you to picking one primary. You can't vote in multiple parties' primary elections, but it's up to you to pick which one. You can be a Republican, identify yourself as a Republican. The Republican Party might consider you to be a Republican. And in some states, you might be registered with the state as a Republican and you can still vote in the Democratic primary. That's an open primary. A semi-closed primary is, as the name implies, something in between where if you're a registered Republican, you can vote in the Republican primary. If you're a registered Democrat, you cannot vote in the Republican primary. But if you're registered as an independent, you're registered to vote, but you are not registered as affiliated with either the Democratic or Republican parties, then you can vote in whichever primary you want. So the rules for voting in the primary in a semi-closed primary state would be the people who are eligible to vote in a party's primary are members of that party or unaffiliated voters, as opposed to a closed primary, which says only if you're affiliated with that party, or an open primary that says as long as you're registered to vote, we don't care which party you're affiliated with. And there's a large number of states that fall into all of those categories.

Michael Dimino:
[5:52] And then there are some besides that don't fall into any of those three. So there really is a tremendous diversity across the states.

Katy Smith:
[6:01] Interesting. So you can't say, oh, that is like the majority or South Carolina is in the minority. There's just such an array. It's hard to say there's a norm.

Michael Dimino:
[6:09] It depends what specific part of the law you're talking about. South Carolina is definitely in the minority in the sense that there is no party registration at all with the state. As to being an open primary state, South Carolina is joined by many other states that decide that open primaries are the way to go. And by the way, one other aspect of the diversity that I didn't mention before is that some states vary the rules depending on which party it is. So some states have a Democratic primary that operates under one set of rules and a Republican primary that operates under a different set of rules.

Katy Smith:
[6:45] Interesting. And is that difference codified by the legislature, or is that determined by the parties themselves?

Michael Dimino:
[6:53] Usually the legislature, the statutory rule that governs it, allows the party to make the decision, and then the different parties make different decisions about that. And it won't surprise anybody to say that the rules that are chosen by the parties or by the state are chosen with an eye toward what the results are likely to be. And so a party faction that wants to promote a certain kind of ideology or a certain candidate will look to impose rules that will favor that kind of ideology or that kind of candidate.

Katy Smith:
[7:31] So is another way to say that, that whoever's in power makes rules to keep on staying in power?

Michael Dimino:
[7:38] It's funny how that works sometimes.

Katy Smith:
[7:40] Okay. So in South Carolina, we currently have three bills filed in the legislature to change the way our primaries work. We have one that says all registered voters must take action to register with a party before they can vote in that party's primary. Another forbids, goes beyond that, to forbid the voter for changing party affiliation for two years after they make that registration. And another says you can go in to vote on election, on primary day, unaffiliated, but upon choosing to vote in the Democratic primary or the Republican, you now become a registered member of that party. How does that hit you? Any notes you would have about any of that as that sounds about right or pros or cons you see?

Michael Dimino:
[8:25] The significant difference between them, the significant debate that would be going on in deciding which one of those, if any, that someone supports, is how much influence do you think should be appropriate for the general public to have about the choices that are made in a specific party's primary election? That is to say, it is stated a little more directly, should the party be able to decide for itself what its policies it wants to promote or what nominees it should have.

Michael Dimino:
[9:05] If you think so, if that makes sense to you, if you look at parties and say, well, parties are just a club of ideologically grouped individuals, and of course, they should be able to determine which policies and which nominees they want to support. Well, then you want fairly strict rules. You only want members of that party to participate in the primary election, because otherwise, the choice of those party members might be changed by the participation of someone who's not a member of the party, maybe someone who's even antagonistic to the party. Maybe Republicans want to vote in a Democratic primary precisely so that they can choose a weak Democratic nominee who would be less likely to beat the Republican nominee in the fall. So you have these kinds of tensions. To stave that off, we have what are built-in protections against what's called party raiding. That is when someone from another party or someone with an antagonistic philosophy decides to join a party or participate in its primary so as to undermine the strength of that party.

Michael Dimino:
[10:19] And one of the ways that you guard against that is a measure like in one of the bills that you talked about, where we have some protection built in. You can't just join the party on the day of the primary and then rejoin your preferred party the next day. You're stuck in that party for two years or whatever the period is. Or maybe we require you to register as a member of the party six months in advance of the election that you want to participate in. Again, so that you don't just say, well, I'm a Democrat, but I want to torpedo the Republican primary, so I'm going to jump in at the last minute. You have to make this choice then many months in advance, which limits the number of people who would be able to do that. On the other hand, if your goal is not to preserve this kind of autonomy for the party, but your goal is to encourage as many people to vote in whatever elections they find interesting and valuable, but then these kinds of measures.

Michael Dimino:
[11:23] Are inconsistent with that kind of objective. Because if you place limitations on people's ability to vote in an election, you're going to limit the number of people who are going to be able to do it. So you might have a particular election year where one party's nominee is wrapped up. For all practical purposes, we know who's going to be the nominee. Maybe the person's running unopposed or the person's incumbent that's going to get the nomination. And so that party is not the exciting primary election that year. Maybe the other party is more exciting. So in 2012, for example, take the presidential race. President Obama had been elected in 2008, was running for re-election. It was absolutely clear that Obama was going to get the nomination of the Democratic Party to run again as president in the 2012 election. So the Republican primary then was more interesting. If you wanted Romney, if you wanted somebody else, maybe you jump in and you participate in that one, even if you're a Democrat, because you say, well, the Republican primary is more interesting. And maybe you participate in the Republican primary with a kind of semi-sinister motive to try to pick the weakest Republican. Or maybe you go in genuinely saying, well, if a Republican is going to win, I want to try to pick the Republican that I find most palatable.

Michael Dimino:
[12:50] But remember people in that first group people who want the party to have that autonomy those people would say that's a problem even if even if the other party the person who's affiliated with the other party is going in with the purest of motives that person still has an ideology that's opposed to the party itself because if you really believed in the ideals of the party, you'd be a member of that party. So what tends to happen, or at least what a lot of people think would tend to happen, would be that open primaries end up resulting with nominees who are more centrist ideologically. Because the Republican nominee would be chosen not just by members of the Republican Party, who are more conservative than the average voter, and Democratic nominees would not be chosen just by members of the Democratic Party who are more liberal than the average voter, but nominees of both parties would be chosen by the electorate as a whole, including a large number of independents. And so the one who's going to win in a contest like that is going to be one who appeals to the median voter in that election, which would be closer to the ideological middle. And we do see that not in every election, but overall the nominees that come out of closed primary states.

Michael Dimino:
[14:18] Tend to be more conservative and more liberal than the ones that come out of open primary states, or the numbers of conservatives and liberals are higher in the states that have close primaries than open ones. Which leads to another point is if you're choosing a primary method based on what kind of outcomes they're going to produce.

Michael Dimino:
[14:41] Well, then ideological moderates tend to like open primaries because the ideological moderates have greater control over who ends up winning the election. Whereas your sort of bright colors, liberals and conservatives tend to gravitate toward closed primaries because you're going to end up with more ideologically extreme nominees. And there's an interesting historical light on this, that when the Democratic Party went through this in the early 70s with a debate about whether the Democratic nominee should be chosen in a purely Democrat-oriented or Democrat-only process and decided that, yes, the nominee would be better if it were chosen strictly by Democrats. Well, the committee that was chosen to study that process was the McGovern-Fraser Commission, George McGovern, who was an extremely liberal member of the Democratic Party. The commission recommends these closed primaries that use only Democrats that we know are going to favor the ideological extremes. Who ends up becoming the presidential nominee in 72 but George McGovern, the one who might not have had as easy a time if he had to run in a process that included a large number of independents, some Republicans and Democrats.

Katy Smith:
[16:05] Interesting. And how'd that work out for George McGovern?

Michael Dimino:
[16:08] Not terribly well. Not terribly well for the Democratic Party, which, of course, he loses 49 states in a rout at the hands of Richard Nixon in 72. And maybe a cautionary tale for parties. Maybe they're more likely to win elections if they appeal to that ideological center. But of course, a lot has changed in politics in the 50 years since then.

Katy Smith:
[16:32] Just a little bit. The other thing that strikes me about a difference now is our areas are so gerrymandered that they are largely guaranteed to go Democratic or Republican. And I think that's what encourages people to want to vote, as you said, in another primary. Any commentary you might have about that from a political standpoint?

Michael Dimino:
[16:54] There is a lot of concern about politically gerrymandered districts. That's not anything new, of course. The districts have been gerrymandered to produce particular outcomes and to advantage certain parties. Ever since there were parties, and even really before parties, they were gerrymandered to help and harm specific people. It's generally thought to be more effective nowadays because the computers that aid in the redistricting are more precise. And so the districting, the gerrymandering can be done better in a technological kind of sense. But there's nothing new about the objective of drawing district lines to advantage certain people or certain ideologies. And yes, of course, it's true that people who find themselves in a district that is not competitive are going to have all the more incentive to try to participate in the primary because the results of the general election are a foregone conclusion.

Michael Dimino:
[18:00] But again, that's nothing new. It's been happening in districts for a long time. And even in statewide races, there are many states where statewide races are not especially competitive. And so the real fight is about who's going to become the nominee of the dominant party.

Michael Dimino:
[18:21] That fact led to some historically very significant decisions in the early part of the 20th century. So-called white primary cases were important in that era when black people who had been excluded from the Democratic Party's primary said, we have to vote in that election. Yeah, of course, we can vote in the general election, but that doesn't matter because after the primary, we all know who's going to take office. The real fight is in the primary election. We want to vote in the Democratic primary because that's where the real choices are going to be made. The Supreme Court ruled in their favor in part on that ground that a system that places so much realistic emphasis on who wins the primary election can't exclude people from the primary election on the basis of race. There is a First Amendment aspect to this debate that I'd like to mention that should be important. Now, so far, the courts have largely backed off. They have said that there is a First Amendment interest that each party has, that is a right of speech and a right of association, that each party should be able to associate with people who want to form that association. And your association can't be controlled by the state, can't be controlled by outsiders.

Michael Dimino:
[19:50] And this makes a great deal of sense. If you're forming an organization that's dedicated to a particular view on some political issues, whether it's abortion or affirmative action or gay rights or animal rights or economic policy or whatever it is, and your leadership within that group is going to be decided by people who don't hold those positions. While your leadership may be people who don't agree with the rest of the group, with the reason why the group's formed. So there is definitely a First Amendment associational interest in being able to have this autonomy in your association, be able to choose your policies, your leadership, yourself without interference from the government.

Michael Dimino:
[20:40] On the other hand, if each party is allowed to make its own rules about how to choose its leaders and who gets to choose its leaders, the effect will be that many voters will be excluded from the process because they don't want to be members of the group. Maybe the primary election is the only one that realistically matters in the jurisdiction. And so if you adopt closed primary elections or if you choose people, nominees by convention say, and only the people who belong to that party are the ones who are going to go to the convention and participate, well, then the other voters in the jurisdiction are going to be left out of the process. So some people have argued that the right to vote or the general state interest in increasing participation in the electoral process should encourage parties and states to force parties to accept the participation of more people in their primaries, even if that has the effect of moderating the nominees or the ideologies that are advocated by those parties.

Katy Smith:
[21:56] Wow. It's a lot to think about.

Michael Dimino:
[21:59] There's a peculiar aspect of party primaries when they're run by the state. The First Amendment, as I said, generally gives individual associational groups, groups that have a message and that want to advocate for that message, they give them a right to some amount of autonomy from the state. But.

Michael Dimino:
[22:24] There is no requirement that we have primary elections run by the state in the first place, at least party primary elections run by the state. Of course, there has to be some way of whittling down the total number of potential candidates to a manageable number that will appear on the general election ballot. And most states say, well, the way that we're going to do this is by putting a party nominee on the ballot, and then we whittle down the nominees as to each party individually, and then it's the party nominees that go against each other in November. But it doesn't have to be that way. Some states in a process that started with Washington state in 2004 was California adopted a similar kind of process some years before. Alaska has adopted a variety of this process. Some of these states say we're going to get out of the business of running party primary elections. The party still exists. The party is its own club. It can decide whatever it wants to do as far as advocating for the election of people. But the state-run primary is not going to include party names, and it's not going to exclude voters on the basis of party. Instead, it just says, here are all the people who want to be governor.

Michael Dimino:
[23:52] All the voters in the state can come in and vote for their preference. Pick out the one that you want to be governor. Somebody's going to get the most votes, somebody's going to get the second most votes, and those two will run against each other in November, whether they amount to the leaders of two different parties, the same party, whether one of them is a minor party or an independent. We call it the top two primary selection because it's not just trying to choose the nominee of the party and it's not telling the party then your nominee the one that you have to advocate for is someone who was chosen by people who aren't you in that system we're not deciding who the party's nominee is we're just deciding who's going to be on the general election ballot which might have one Republican going against one Democrat, but might not.

Katy Smith:
[24:45] So in that scenario where you got five, 10 people, some are Democrats, some are Republicans, some are Libertarians, whatever, my brain is going to all the math of how this could work out, that you've got, if you've got three super popular candidates, two of them might split the vote so that the fourth most popular candidate ends up with another person. Does that kind of thing happen frequently?

Michael Dimino:
[25:08] Well, it does. That's the problem with having multiple candidates in a general election when you have the winner being whoever gets the most votes, a plurality winner election. We call it the spoiler effect, that two candidates who are relatively close to each other ideologically can split the vote that would be attracted to them. And even if their total vote as a majority, they might lose to someone else who has a different ideological view, but can get the unified support of that wing. That's a problem because the ultimate winner of the election is someone who is not supported by a majority of the electorate.

Michael Dimino:
[25:54] Primary elections are supposed to, in some way, limit that danger. As if the primary elections whittle down the candidates, then all the voters who support one party's ideology can vote for whoever that party's nominee is. And same thing with the other party. And then you just see who has more support. If you have an election between only two people, one of them is going to get a majority. You have the risk of the spoiler effect if you have more than two people. Now, in the primary election, the same effect is possible, but less severe, because if you have three, four, ten people running to get a nomination.

Michael Dimino:
[26:42] Yeah, you might have the result that the one who wins is only going to get 27% of the vote or something. But you're still talking about 27% of the vote of the people who are voting in that primary. So in the general election, you're still going to get one member of that party against someone else. Now, your question was with particular regard to the top two primary? And could we get a situation where a variation of that spoiler effect causes a problem here? And yes, of course you can. That is, you might have a primary election where 10 different people run, and so the top two vote-getters get way less than a majority.

Michael Dimino:
[27:33] And that's true. In some ways, you're not going to come up with any kind of way of resolving that problem. Somebody has to be eliminated in the process. But the savior is the saving grace of that is that by the time you get to November, you've still whittled down the choice to two candidates. So the voters of the whole state in November get to say, all right, maybe I would have preferred somebody else. There's millions of people in this state. Chances of these two being the best two people that I want to be governor are kind of low. But between these two, we can choose, do I want candidate A or candidate B? And you're going to get a majority. So the election process in the end does make a fairly clear statement, not that this guy is the best guy that we could have possibly gotten for this job, but between those two candidates representing, that's who we want. Now contrast that with the problem if three people run in the general election, then you might end up with a choice that is opposed by a majority of the general election because, 30% want Republican A or another 30% want Republican B, but 40% want the Democrat and the Democrat wins, even though 60% would prefer a Republican to win.

Katy Smith:
[28:59] So listeners, we're going to pause here because Professor Dimino and I had such a rich conversation. We're going to save some of it for next week. So on the next episode, we will get into ranked choice voting. So be sure to follow us on your favorite podcast app and tune in then so you can learn what more there is to know about election law.

Catherine Puckett: Simple Civics: Greenville County is a project of Greater Good Greenville. Greater Good Greenville was catalyzed by the merger of the Nonprofit Alliance and the Greenville Partnership for Philanthropy. You can learn more on our website at greatergoodgreenville.org.