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Wednesday, April 17, 2013

Cuomo's Election Law Reform May Be Unconstitutional

New York Governor Andrew Cuomo proposed some election law reforms Tuesday, including proposals that voters be allowed to change political parties much closer to the primary election (good) and candidates be allowed to run in  the primary elections of parties in which they do not belong (very bad).  The latter proposal may be animated by the recent federal indictments of some elected officials and Republican Party leaders for trying to rig the mayoral endorsements by certain New York City party county leaders for this year's primary election.

Currently, a voter who already has picked a political party and wants to switch parties to vote in next year's primary must make the change by approximately the first week of October of this year. This policy is called deferred enrollment, has been in place for decades and, according to the 1970 Supreme Court decision in Rosario v. Rockefeller, was upheld as constitutional despite the burden on voters.  

The court cited concerns about "party raiding," a phenomenon whereby voters not truly allied with a party could "invade" the target party and tip the election to a favored -- or disfavored candidate.  Such machinations do occur and are legal -- in fact, such maneuvering occurs to some degree in virtually every election cycle as partisans try to make sure the other (major) party puts up the weakest candidate.  Every other state allows voters to switch parties much closer to the primary election.  

As for the latter concern, allowing candidates to "invade" political parties in which they do not belong raises concerns about the voters' right of association, that is, the right to ally with people with whom they share (presumably) some sort of ideology (to the extent ideological commonality may be inferred from a common political party enrollment).  This raises a serious First Amendment issue and would be ripe for an immediate challenge on constitutional grounds.  The proposal may permit stronger out-of-party candidates (such as wealthy candidates like you know who) to drown out competing voices from within a party, and by extension, to drown out the voices of average voters already enrolled in their party.  In other words, this proposal could largely negate the importance or value of party enrollment and turn primaries into just another haphazard preliminary round of the electoral playoff.

This is not to say that the current system, which allows county leaders and sometimes state party leaders to cherrypick favored candidates from outside with a special endorsement called a Wilson-Pakula certificate, is without its flaws.  However, at least the current system affords some sense of accountability by party leaders to their constituents from within the party.

Cuomo's proposal appears to be hasty, made as a move to pander to the "reform" elements of the public and to garner applause from certain good-government groups and the news media.  That doesn't make it good policy. This recipe needs to be sent back to the kitchen.

Eric Dixon is a New York attorney who specializes in investigative and regulatory law and handles election law for various candidates.  Mr. Dixon is not presently affiliated with or engaged by any New York City candidate or political party.


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